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THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: Of course,
Utah did not adopt this plan until 1967, so
there has been no legal challenge to the
constitutionality of that provision. Is that
not correct?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Entirely correct.
THE CHAIRMAN: Delegate Mitchell.
DELEGATE MITCHELL: And further,
as you say, it might be improbable, but pos-
sible that a governor might fail to act, but
at the same time, using that logic, would
it not be improbable but possible that a
nominating commission might not act in the
allotted time?
THE CHAIRMAN: Delegate Mudd?
DELEGATE MUDD: Yes.
THE CHAIRMAN: Had you finished
your question, Delegate Mitchell?
DELEGATE MITCHELL: No, sir.
THE CHAIRMAN: Proceed, Delegate
Mitchell.
DELEGATE MITCHELL: Why then
did the Committee not provide for such a
possibility on the part of the nominating
commission?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Well, for the
simple reason that we feel the possibility
of a nominating commission such as we
propose, consisting of several people not
acting in the premises, is much more re-
mote than the possibility of the governor,
an individual, failing to act.
THE CHAIRMAN: Delegate Mitchell,
do you have a further question?
DELEGATE MITCHELL: And there-
fore, you considered using this method,
having the judge select and appoint, as an
alternative?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: No. The judge
could not select. The nominating commis-
sion selects. The judge appoints, and then
only in the event the governor fails to ap-
point, as we mandate in the constitution
that he sheall do. He shall fill the vacancy;
that is the provision of line 1 of section
5.14.
THE CHAIRMAN: Are there any fur-
ther questions, Delegate Mitchell?
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DELEGATE MITCHELL: Mr. Presi-
dent, I have no further questions, but may
I make a comment at this point?
THE CHAIRMAN: Yes. You may pro-
ceed.
DELEGATE MITCHELL: Prior men-
tion has been made here in the Convention
of Judge Robert B. Watts, who came on the
floor after the Convention had adjourned,
and Judge Watts authorized me to say to
the Convention that he and a number of
judges are opposed to having this responsi-
bility thrust upon them.
After I had read the draft of the Com-
mittee recommendation with regard to 5.14,
I questioned a number of other judges, and
they felt that this was not a judicial re-
sponsibility, and they would rather not
have this obligation made a constitutional
requirement.
THE CHAIRMAN: Does any other dele-
gate desire to speak in opposition to the
amendment?
(There was no response.)
THE CHAIRMAN: Does any other dele-
gate desire to speak in favor?
(There was no response.)
THE CHAIRMAN: Are you ready for
the question — I am sorry. Delegate Bam-
berger?
DELEGATE BAMBERGER: Will the
Chairman yield to a question?
THE CHAIRMAN: Delegate Mudd.
DELEGATE MUDD: Yes, Mr. Chair-
man.
THE CHAIRMAN: Delegate Bamberger.
DELEGATE BAMBERGER: If the lan-
guage of the Committee's proposal re-
mained mandatory, that is, that the gov-
ernor shall fill the vacancy, and if the
additional language proposed by the amend-
ment, which puts upon the governor a duty
to perform that act within the limited
period of time were in the constitution,
would that not be enforceable by a court;
and if that is so, then do we not create
some danger that a governor — though I
can't imagine the circumstances in which
a governor would be reluctant to exercise
the power of appointment — would have
an out were he to get a list he did not like;
might he not in a moment of pique be able
to say, "well, I will let that judge over at
the Court of Appeals play with this mess.
I will not make the appointment from this
list."
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